El derecho fundamental a la salud en Colombia

Base teórica y jurisprudencial

Abstract

The action for tutela, which is a writ for protection of fundamental rights, was acid tested by the right to a good Health and its juridical nature since most of the times the tutela has been used as a mechanism to get the protection of this fundamental right. As far as jurisprudence goes, it has been stated that Health was an essential element to life, but when the Law 100, 1993 set the efficiency and profitability indicators, it submitted the health service to Neo-liberal criteria, the entities in charge of providing health service (EPS) started “rejecting” the service to those who demanded therapies and drugs that were not included in the Obligatory Health Plan (OHP). Since the act from 1949, Federal Germany adopted a formula that would qualitatively change the
classic liberal State into a Social State of Law, which would turn Constitutional Law into the guarantor of the liberties fundamental rights regime through the modulation of contents of the constitutionality sentences and the weighting and balance tests when these were at stake. Thus the Colombian Constitutional Court, by using the content modulation of their sentences was creating some sort of jurisprudential OHP through its hundreds of tutelas that it revised due to the violation of the right to live because of the rejection to provide health service.
This is how we get to the well-known sentence T-760/08 which permanently establishes the jurisprudential OHP and creates legal and procedure standards that gets the EPS regulated by a Legal Framework in order to provide health service by creating an autonomous figure i.e, the fundamental right to Health.